People v. Trutenko

2024 IL App (1st) 232333, 258 N.E.3d 876

• Court: Appellate Court of Illinois
• Decided: June 28, 2024
• Docket: 1-23-2333
• Status: Published

Opinion

2024 IL App (1st) 232333

Nos. 1-23-2333, 1-23-2334 (cons.)

SECOND DIVISION June 28, 2024

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court of Cook ILLINOIS, ) County, Criminal Division ) Plaintiff-Appellant, ) ) Case Nos. 22 CR 1350201, 22 CR vs. ) 1356801 ) NICHOLAS TRUTENKO and T. ) Honorable Daniel B. Shanes ANDREW HORVAT, ) ) Appeal from Order of November 8, 2023 Defendants-Appellees. ) pursuant to Supreme Court Rule 604 _____________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Mikva concurred in the judgment and opinion.

OPINION

¶1 Defendant Nicholas Trutenko stands charged with official misconduct, obstruction of

justice, and perjury allegedly committed while he was an assistant state’s attorneys (ASA),

specifically in regard to the multiple prosecutions of Jackie Wilson, both the second Wilson trial

in 1989 (when Trutenko was the prosecutor) and the third in 2020 (when he was an ASA, but the

case was tried by a special prosecutor). The State alleges that Trutenko committed various

criminal acts in relation to both Wilson trials, including—relevant here—withholding

exculpatory evidence.

¶2 In this case, also tried by the Office of Special Prosecutor (OSP), the State seeks to prove

Trutenko’s culpability for withholding material exculpatory evidence, in large part during Nos. 1-23-2333, 1-23-2334 (consolidated)

conversations Trutenko had with a fellow ASA, Paul Fangman, in September 2020, as the third

Wilson trial approached, and both Trutenko and his employer, the Cook County State’s

Attorney’s Office (CCSAO), were issued subpoenas by Jackie Wilson’s defense attorneys. Those

defense lawyers made no secret that the purpose of these subpoenas was to uncover material

information from, if not misconduct by, Trutenko in his role as an ASA. The State seeks to

introduce evidence of multiple conversations between Fangman and Trutenko in which Trutenko

allegedly withheld material exculpatory information relating to the Wilson trial from Fangman,

despite Fangman’s prompting.

¶3 In the midst of his bench trial here with co-defendant T. Andrew Horvat (another ASA

whose involvement we will discuss later), defendant Trutenko claimed, for the first time, that his

communications in September 2020 with his fellow ASA Fangman were protected by the

attorney-client privilege. After pausing the trial to conduct an evidentiary hearing, the trial court

agreed that the proffered communications were privileged, and it further ruled that they were

inadmissible on evidentiary grounds that Trutenko had not raised. The State seeks interlocutory

review of these rulings.

¶4 We hold that Fangman and Trutenko, fellow ASAs at all relevant times, were not

attorney and client. Fangman handled at least one, and arguably two, subpoenas issued by

defense attorneys for Jackie Wilson in September 2020. Because the subpoenas sought

Trutenko’s personnel file and his testimony at Wilson’s upcoming trial, Fangman no doubt had

to confer with Trutenko. But his true client was the CCSAO; if Fangman represented Trutenko at

all, it was only in Trutenko’s official capacity. Which means that the attorney-client privilege

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belongs to the CCSAO, not Trutenko. And the CCSAO has affirmatively waived any privilege

that it may have been able to assert in a criminal probe of one of its own agents.

¶5 This is not a contingent, fact-bound conclusion, rooted in the particular relationship

between Fangman and Trutenko. It is a matter of statutory law: as an ASA, Fangman could only

represent his fellow ASA Trutenko in his official capacity; he could not serve as Trutenko’s

personal lawyer. See 55 ILCS 5/3-9005(a)(4) (West 2022). And it is equally a matter of

fundamental principle: a government lawyer’s duty is to serve the public’s interests, including its

compelling interest in exposing official wrongdoing. A public official may not use a government

lawyer to shield evidence of his alleged wrongdoing in office from the People themselves, as

represented by the criminal process. Trutenko has no attorney-client privilege to assert.

¶6 Nor can we agree with the trial court’s backup bases for its exclusion of this evidence.

The hearsay rule is not implicated here in any meaningful way, certainly not in any sweeping

fashion as the trial court applied it, and the court’s rulings on relevance and cumulativeness fail

to acknowledge the unique probative value of Fangman’s testimony for the State’s burden to

prove the materiality and mens rea elements of the charged offenses.

¶7 We reverse the trial court’s order and remand for further proceedings.

¶8 BACKGROUND

¶9 I

¶ 10 Trutenko’s role in the prosecution of Jackie Wilson is essential context for understanding

the purported attorney-client relationship between Trutenko and Fangman and the relevance of

their communications to the State’s proof of certain offense elements. So we begin with a brief,

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bird’s-eye sketch of this long and often regrettable chapter of local legal history.

¶ 11 Chicago police officers Richard O’Brien and William Fahey were murdered in 1982. The

Wilson brothers, Jackie and Andrew, were jointly tried and convicted of these infamous crimes.

Each conviction was reversed. People v. Andrew Wilson, 116 Ill. 2d 29 (1987); People v. Jackie

Wilson, 161 Ill. App. 3d 995 (1987). Andrew’s confession was suppressed as the product of

police torture, thus marking the beginning of what we have come to call the Burge scandal. But

not Jackie’s confession. At least not yet.

¶ 12 Jackie—whom we will simply call “Wilson” from now on, as Andrew’s relevance to our

story has more or less been exhausted—was re-tried in 1989. This time around, defendant

Trutenko was the lead prosecutor. He offered a new witness, a jailhouse informant and notorious

con artist named William Coleman, who testified, in sum, that Wilson made incriminating

statements to him while they were housed together in the Cook County jail. In exchange for that

testimony, Trutenko helped broker plea deals on Coleman’s pending state and federal charges.

These extraordinary deals allowed Coleman to serve only a few months in prison, far short of the

decades he potentially faced on a host of charges. The full benefits of the State deal were not

disclosed to Wilson, and the federal deal was not disclosed at all. Wilson was again convicted of

Officer O’Brien’s murder, but he was acquitted of Officer Fahey’s murder.

¶ 13 Coleman returned to his native England in 1989, after serving his minimal sentences. In

1991, Trutenko left the CCSAO for private practice. He would return in 2008.

¶ 14 Meanwhile, Wilson’s case, like so many others, wound its way through postconviction

proceedings and, eventually, a hearing before the Illinois Torture Inquiry and Relief Commission

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(TIRC). The TIRC found credible evidence that Wilson’s confession was the product of police

torture. On this basis, Wilson’s conviction was overturned again in 2018, and his confession was

suppressed. People v. Wilson, 2019 IL App (1st) 181486. Given the CCSAO’s standing conflict

in the Burge torture cases, the OSP was appointed to handle the Wilson prosecution, and it

decided to try him a third time. That trial was held in 2020.

¶ 15 II

¶ 16 With Wilson’s confession now suppressed, the jailhouse informant Coleman’s testimony

took on heightened significance, now arguably the centerpiece of the State’s case. But there was

a wrinkle: nobody could find him, despite an exhaustive international search. A “peripatetic

felon,” with a far-flung reputation as a “ ‘consummate liar,’ ” a transnational rap sheet of fraud

convictions (and some violent crimes, too), and the wherewithal to evade a longstanding

INTERPOL arrest warrant, Coleman proved so elusive that he was eventually presumed dead.

Wilson v. City of Chicago, 6 F.3d 1233, 1239 (7th Cir. 1993). The circuit court deemed Coleman

unavailable. Over defense objection, his prior testimony would be read into the record at

Wilson’s third trial.

¶ 17 By now, Wilson’s attorneys had discovered Coleman’s plea deals. And they had reason

to believe that Trutenko and Coleman developed a relationship that persisted for some unknown

amount of time after Wilson’s second trial. But with Coleman absent, there would be no cross-

examination in which to probe the credibility of the State’s star witness with this new

information. So Trutenko himself became the focal point of the credibility attack.

¶ 18 To this end, Wilson’s attorneys issued several subpoenas, but two of particular interest.

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The first was a document subpoena to the CCSAO, seeking Trutenko’s personnel file. The

second was a witness subpoena for Trutenko’s testimony at Wilson’s upcoming third trial.

¶ 19 As Wilson’s attorneys explained to Fangman and to Judge Hooks, who presided over the

Wilson case, the defense believed that the documents it sought were exculpatory, insofar as they

would cast doubt on the propriety of Trutenko’s dealings with Coleman and thus, by extension,

undermine the credibility of Coleman’s prior testimony. The CCSAO was granted intervenor

status in the Wilson case.

¶ 20 These subpoenas provide the context for the conversations, e-mails, and court

appearances from which the purported attorney-client relationship between Trutenko and

Fangman is said to have arisen. We will circle back to the particulars, but for immediate

purposes, a general sketch of the context will suffice. Upon receiving the document subpoena,

the CCSAO assigned it to Fangman. A few days later, Trutenko was served with the witness

subpoena. That subpoena was not immediately assigned an ASA; nine days after Trutenko

received it, it was assigned to codefendant Horvat, another ASA.

¶ 21 Fangman conferred with Trutenko as he prepared the CCSAO’s response to the document

subpoena. And while the witness subpoena remained unassigned, Fangman spoke to Trutenko

about that subpoena, too; he also participated, to some extent, in a witness-prep session before

Trutenko took the stand. At the heart of the trial court’s finding of privilege is this thought: in

stepping into the breach on the witness subpoena, Fangman inadvertently created an attorney-

client relationship with Trutenko.

¶ 22 As Trutenko’s day on the stand approached, he participated in a Zoom prep session with

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Fangman, Horvat, and Lawrence Rosen, one of the special prosecutors trying the Wilson case.

The primary topic of conversation, according to the State, was Coleman, since that is why

Wilson’s attorneys were calling Trutenko in the first place.

¶ 23 Trutenko testified in the Wilson trial a few days later. As he took the stand, according to

the State, Horvat approached Rosen and requested that he refrain from asking Trutenko any

questions about Coleman. But on direct (if hostile) examination by the defense, Trutenko

revealed, for the first time, that he had a decades-long personal relationship with Coleman. For

example, he had flown to England in 1992 to become the godfather of Coleman’s daughter.

More importantly—given that Coleman was presumed dead and had thus been deemed

unavailable—Trutenko knew full well that Coleman was alive. In fact, they were still in touch, at

least from time to time, and Trutenko had received an e-mail from Coleman just a few days

earlier.

¶ 24 As the State views it, Trutenko had failed to disclose his relationship with Coleman, and

he had withheld information about Coleman’s whereabouts from the defense, the OSP, the

circuit court, and his own chain of command within the CCSAO. This despite the fact that he

knew—through his communications with Fangman—that Wilson was being re-tried, that

Coleman’s credibility was at issue, and that Coleman could not be located. Trutenko also

testified, among other things, that Coleman was not discussed during the Zoom prep session, and

that Trutenko did not recall Coleman’s federal plea deal or speaking to federal prosecutors on

Coleman’s behalf.

¶ 25 The OSP dismissed the case against Wilson with prejudice. The CCSAO immediately

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fired Trutenko and engaged a private attorney to represent him, no doubt recognizing (perhaps

for the first time) that its own interests were in serious conflict with Trutenko’s. Trutenko

allegedly permanently deleted the entire contents of his work-issued cellphone and purged data

from his work-issued laptop. Horvat was fired later.

¶ 26 The resulting indictment charges Trutenko with perjury, obstruction of justice, official

misconduct, and violations of the Local Records Act. (We will leave Horvat’s charges aside for

now.) Two of the obstruction counts, and the Local Records Act count, pertain to the destruction

or concealment of data on Trutenko’s government-issued devices. Those charges are not relevant

to the issues before us. The remaining obstruction count, and three (of the four remaining) counts

of official misconduct, all allege, on alternative legal theories, that Trutenko failed to disclose his

ongoing relationship with Coleman. The two perjury counts are based on Trutenko’s testimony

(1) that Coleman’s name never came up in the video conference, which is also the basis for the

remaining official-misconduct charge, and (2) that Trutenko had no recollection of Coleman’s

federal plea deal.

¶ 27 III

¶ 28 Against this backdrop, we can now take a closer look at the purported attorney-client

relationship between Trutenko and Fangman. The evidence on this topic comes from the mid-

trial evidentiary hearing. The State called Fangman and Jessica Scheller, then the chief of the

Advice, Business, and Complex Litigation Division of the CCSAO, the division responsible for

handling subpoenas such as these. The State proffered summaries of pertinent conversations

between Trutenko and Fangman, culled from Fangman’s notes, and e-mails and text messages

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exchanged between them. The parties also cited various statements made on the record in the

Wilson case.

¶ 29 Before we summarize the evidence from the evidentiary hearing—the live testimony of

Scheller and Fangman and the State’s oral proffer described above—we make two preliminary

observations. First, as we find ourselves in the rare instance of reviewing evidence, testimony,

and oral proffers midtrial, we emphasize here that we are not commenting on the truth of this

evidence or binding the trial court to any factual findings whatsoever.

¶ 30 Second, we would note that while the exhibits have been filed under seal, the evidence

we discuss was proffered and discussed in open court, in the presence of the media. Reporters

from the Chicago Tribune attended the evidentiary hearing and published an article about it on

November 8, 2023. 1

¶ 31 Trutenko never objected to the presence of reporters or asked the trial court to close the

hearing to the public. Nor has he asked for the appellate briefs to be filed under seal. Given this

lack of insistence that his purportedly privileged communications with Fangman should be

treated as confidential, we perceive no barrier to discussing them freely.

¶ 32 The testimony of Fangman and Scheller was consistent, in essentials, about Fangman’s

role in the Wilson case, at least as the CCSAO understood it. Collectively, they testified to the

1 See Christy Gutowski, Madeline Buckley, & Stacy St. Clair, Trial of Former Cook County Assistant State’s Attorney Halted for Appeal After Ruling Rebuking Kim Foxx’s Office, Chi. Trib., Nov. 8, 2023, https://www.chicagotribune.com/2023/11/08/trial-of-former-cook-county-assistant- states-attorneys-halted-for-appeal-after-ruling-rebuking-kim-foxxs-office/ [https://perma.cc/Y38U-U6WS].

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following. On September 9, 2020, Scheller assigned the document subpoena to Fangman. It was

understood that his only client in this role was the CCSAO, as the keeper of the records under

subpoena. Fangman’s task was to identify any responsive records and to determine whether to

move to quash the subpoena or otherwise negotiate its scope.

¶ 33 The next day, Fangman filed a motion to quash the document subpoena, and a hearing

was set for September 15. In preparation for that hearing, Fangman spoke to Trutenko on

September 11 and 14 to learn about the Wilson case and Trutenko’s role in it. According to the

proffer, Coleman was not yet a topic of discussion. And these conversations took place before

the purported attorney-client relationship arose, in the trial court’s view, on September 15.

¶ 34 The motion to quash remained pending beyond the September 15 hearing, and Fangman

continued to confer with Trutenko beyond that date to help assess whether the CCSAO would

continue to oppose the document subpoena. But in the early morning on September 15, Trutenko

was served with the witness subpoena for his trial testimony. He immediately e-mailed Fangman.

Within minutes, Fangman responded, asking Trutenko to forward the subpoena to Scheller and

adding, “[w]e will file a motion to quash.” Thus began their attorney-client relationship, as the

trial court saw it.

¶ 35 Fangman’s off-the-cuff assessment didn’t hold up. He assumed, perhaps reflexively, that

because Trutenko had served as the prosecutor in the 1989 trial, he could not be called as a

witness unless he met the requirements of the “special witness” doctrine, where a prosecutor

cannot be made to testify unless the relevant, material evidence is unavailable from another

source. See, e.g., People v. Willis, 349 Ill. App. 3d 1, 16-17 (2004). But later that day, Fangman

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learned from Wilson’s attorneys that the defense was probing Trutenko’s relationship with

Coleman, and that both subpoenas took aim at this topic (among others). Because Coleman was

deemed unavailable, the CCSAO determined that the elements of the “special witness” doctrine

were likely met and decided, on this basis, that it would not move to quash the witness subpoena.

So that was the last of any notion of moving to quash the witness subpoena, though the motion to

quash the document subpoena remained.

¶ 36 According to the State, Trutenko was not consulted about the decision not to move to

quash the witness subpoena. Fangman and Scheller testified that it was not his personal decision

to make but rather a decision to be made by the CCSAO through the relevant chain of command.

More specifically, Fangman testified that Trutenko did not instruct him to file the motion to

quash, nor did Fangman seek Trutenko’s input on the decision or discuss the strategy or

reasoning behind the decision, “[b]ecause it was the decision of the State’s Attorney’s office

whether or not to move to quash the subpoena.”

¶ 37 But Fangman did confer again with Trutenko on September 15. As Fangman understood

it, he was still gathering facts relevant to the CCSAO’s position on the document subpoena. In

particular, he was trying to understand how Trutenko’s personnel file might relate to Coleman.

Their conversation thus turned to Coleman, his role in the previous trial, and the fact that he was

presumed dead and thus deemed unavailable. According to the State’s oral proffer at the

evidentiary hearing, there was “substantial discussion” of Coleman’s plea deals—including the

federal plea deal that Trutenko helped to broker and whether it had been disclosed.

¶ 38 On September 17, a second hearing was held on the motion to quash the document

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subpoena. Judge Hooks asked Fangman if he would also represent Trutenko when he testified.

Fangman answered that it would likely be another ASA, “but because Mr. Trutenko is a current

Assistant State’s Attorney and he would be testifying related to his role in his previous

employment also, the State’s Attorney’s office definitely represents him as a deponent.”

¶ 39 The September 17 hearing prompted a lengthy call between Fangman and Trutenko. The

focus, according to the State, was again on Coleman. A key topic was whether Trutenko

continued to have contact with Coleman after the 1989 trial, as Wilson’s attorneys were

claiming. Fangman would testify about how he broached the issue repeatedly, and from multiple

directions, thus underscoring its importance to the case. Trutenko continued to deny any further

dealings with Coleman. They also discussed the deposition that Trutenko sat for in a civil rights

case filed by Wilson’s brother Andrew.

¶ 40 Fangman testified that, still struggling to understand the potential connection between

Trutenko’s personnel file and Coleman, he broached these topics again during another lengthy

conversation on September 21. Coleman’s plea deals, and their alleged continued contacts, were

center stage. Throughout their back-and-forth, Trutenko continued to deny that he had any idea

what the defense might be trying to get at.

¶ 41 As the State noted at the hearing, Fangman had already disclosed many of the pertinent

statements from these conversations in a declaration that he filed on October 21, 2020, as part of

the CCSAO’s response to a motion for sanctions that Wilson’s attorneys filed after the dismissal

of his case. Fangman’s declaration was served on Trutenko through the private attorney that the

CCSAO had engaged for him. Trutenko never objected to the disclosure of these statements in

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the declaration on grounds of attorney-client privilege (or anything else).

¶ 42 On September 24, when a date was set for Trutenko’s testimony the following week,

Fangman reached out to his chain of command to ensure that the witness subpoena, which had

lingered unassigned for nine days, was assigned to another ASA. In these e-mails, Fangman

stated that “SAO represents [Trutenko],” and that Fangman “can prep [him],” as he had “been

planning to do.” But by his own assessment, things were not going well for Fangman in court, so

there could be value in having “a different face” at Trutenko’s testimony. Trutenko was not

included on these e-mails, but he does rely on them in seeking to establish his claim of privilege.

¶ 43 In any event, Horvat was tapped for this role. Fangman testified that, on September 26,

he conveyed what he knew, or thought he knew, to Horvat. The next day, he facilitated the Zoom

prep session with special prosecutor Rosen. Fangman participated in the prep session both to

ensure that Horvat was fully up to speed and to see if anything might “shed more light” on the

asserted relevance of Trutenko’s personnel records, since the motion to quash was still pending.

As we noted above, Coleman was the main topic of conversation.

¶ 44 Fangman and Scheller also testified, more generally, about the nature and scope of the

representation undertaken by Fangman. Fangman conferred with Trutenko for fact-finding

purposes, as he fashioned the CCSAO’s response to the document subpoena. Because Fangman

was assigned to handle that subpoena, and nothing more, Trutenko was never his client. Scheller

never told either Fangman or Trutenko that the former represented the latter. She never issued an

engagement or retention letter. Fangman made no promises of confidentiality to Trutenko, nor

was the issue ever discussed. In fact, Fangman testified that he could not have kept his

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communications with Trutenko strictly confidential; at a minimum, he had a “responsibility ***

to report to [his] boss” and disclose any pertinent information to the CCSAO chain of command.

Fangman also testified that no “legal advice” was solicited or dispensed in their conversations.

¶ 45 To put a somewhat finer point on the topic, they testified, Fangman did not represent

Trutenko in either his official or his individual capacity. Rather, it was Horvat who represented

Trutenko—in his official capacity only—by virtue of handling the witness subpoena. Fangman

explained that when he said “SAO represents [Trutenko],” he meant in Trutenko’s official

capacity. Fangman and Scheller both stressed that Fangman could not have represented Trutenko

in his individual capacity as a matter of state law: an ASA may represent county or state officials

in their “official capacity” only, and an ASA is prohibited generally from representing

individuals in litigation. 55 ILCS 5/3-9005 (West 2022). Presented with this express statutory

language, the trial court found that the distinction between Trutenko’s individual and official

capacity was “in this context *** a false dichotomy.”

¶ 46 The defense cross-examined Scheller and Fangman at the hearing but did not call any

witnesses of its own. The trial court invited Trutenko to testify and properly admonished him that

he would not be waiving his fifth-amendment rights at trial by doing so. He declined. Instead,

Trutenko pointed to the following evidence as support for his privilege claim.

¶ 47 The first two pieces of evidence came from Horvat’s initial court appearance in the

Wilson case. Horvat introduced himself as “the attorney for Mr. Trutenko” and stated on the

record that “there was an attorney-client relationship before I came into the picture.” During that

same exchange with Judge Hooks, Trutenko stated that he had “two” attorneys present in court,

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referring, of course, to Horvat and Trutenko.

¶ 48 The other two pieces of evidence came from testimony that had already been offered at

the bench trial. According to Trutenko’s counsel, Joe Magats, the former first assistant in the

CCSAO, “testified that there was an attorney-client relationship” between Fangman and

Trutenko. More precisely, counsel asked Magats if Fangman was “assigned to assist in the [sic]

representing [Trutenko] on the testimony subpoena,” to which Magats answered, “I believe so.”

Recall that it was Scheller, not Magats, who had direct responsibility for assigning attorneys to

subpoenas and who actually assigned Fangman and Horvat to their respective roles.

¶ 49 And finally, according to Trutenko’s counsel, special prosecutors Rosen and O’Rourke

testified at the bench trial that Fangman was the “primary” or “only person they dealt with, as far

as the lawyer for [Trutenko].” It doesn’t much matter whether the special prosecutors viewed

Fangman as “the lawyer for [Trutenko].” But for what it’s worth, Rosen testified that he didn’t.

(O’Rourke didn’t speak to the matter.) To the contrary, Rosen thought Fangman “was

representing the Cook County State’s Attorney’s Office on the document subpoena.” The special

prosecutors were also clear that they “dealt with” Horvat, too—when it came time to prepare

Trutenko for his testimony on September 27.

¶ 50 The trial court found that an attorney-client relationship arose between Fangman and

Trutenko by September 15, 2020, and thus that communications between them, from this point

forward, were privileged. (Except for the September 27 witness prep session, since third parties,

namely, the special prosecutors, were present.)

¶ 51 The trial court further found, sua sponte, that the communications at issue—both before

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and after September 15—were irrelevant and/or cumulative and contained sweeping amounts of

hearsay. The trial court did not completely bar Fangman from testifying within the constraints

imposed by these rulings. He could not, for example, testify as to his conversation with Trutenko

on September 21, 2020, when the subject of Coleman was a major topic (according to Fangman).

¶ 52 After the communications were excluded from evidence, the State filed this interlocutory

appeal, supported by a certificate of substantial impairment. The Trutenko and Horvat cases,

which are being jointly tried, were consolidated for purposes of the appeal. The CCSAO filed a

brief as intervenor, in which it reiterated the position articulated by Scheller and emphasized that

the purported attorney-client relationship found by the trial court is prohibited by state law.

¶ 53 ANALYSIS

¶ 54 The State raises several grounds for reversal of the trial court’s finding of an attorney-

client privilege between Fangman and Trutenko. We need not and do not reach all of them. For

example, the State argues that Trutenko has long waived any alleged attorney-client privilege—

several times over, in various ways. We do not mean to imply that this or other arguments are

unworthy of consideration. But given our resolution, we need not reach them.

¶ 55 I

¶ 56 But before we consider the substantive question of privilege, we address the State’s

preliminary argument that Trutenko’s objection based on attorney-client privilege was untimely,

coming as it did midtrial instead of pretrial. The State claims that Trutenko’s objection based on

attorney-client privilege was a motion to suppress, and thus Trutenko was required to file it

before trial, before jeopardy attached.

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¶ 57 We find no merit to this argument. True, several statutes in the Code of Criminal

Procedure govern “motions to suppress” that are filed on various grounds, principally of a

constitutional variety like the fourth or fifth amendment, which contain general rules that they

must be filed pretrial but with exceptions. See, e.g., 725 ILCS 5/114-11(a), (g) (West 2022)

(motion to suppress confession); id. § 114-12(a), (c) (motion to suppress evidence illegally

seized); id. § 108A-9(a), (b) (motion to suppress electronic recording); cf. id. § 107A-2(j)(1)

(motion to suppress witness identification from police lineup but no timing requirement). Each of

those statutes requires a motion in writing and all but one requires, at least generally, that they be

filed pretrial.

¶ 58 The State does not explain why we should go beyond those statutes, with their carefully

limited subject matter, and judicially insert objections based on attorney-client privilege into the

definition of a “motion to suppress” as that phrase is used in the law. And we can think of no

reason why we should. In our experience, we have never heard attorney-client privilege

objections characterized that way. State law does not define them as such. No supreme court rule

or rule of evidence mandates that interpretation.

¶ 59 Granted, in substance, a motion to “suppress” is merely a motion to “exclude” by another

name; the words are synonyms in this context. If we were just haggling over words, we might

use them interchangeably. But the State is assigning a requirement to a “motion to suppress”—

that it be filed pretrial. That is not quibbling over language; that is attaching a strict procedural

prerequisite to the assertion of a fundamental and sacred privilege without any basis in the law to

do so. And why stop there—by the State’s reasoning, any attempt by any criminal defendant to

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exclude any evidence (or even object to it) would transform into a “motion to suppress,” with a

phantom requirement that the motion be raised pretrial or forfeited. That cannot be.

¶ 60 The only other source of law is Illinois Rule of Evidence 104(a) (eff. Jan. 1, 2011), which

establishes the procedure for determining issues of privilege. That rule merely provides for the

“preliminary” consideration of privilege questions by the court. Id. There is no requirement of a

written motion—or a motion at all—much less a timing requirement for asserting the privilege.

A “preliminary” consideration is not automatically something that must be raised pretrial; that

word simply reflects the commonsense notion that a court will determine whether testimony is

covered by the attorney-client privilege before it is heard by the jury, not after.

¶ 61 Absent a statute, supreme court rule, or rule of evidence requiring an objection based on

attorney-client privilege to be in writing and filed pretrial, we will not create one by judicial fiat.

¶ 62 Here, Trutenko did not file a motion to suppress the statements based on attorney-client

privilege. He did not even make an oral motion. He merely objected to the testimony on the basis

of attorney-client privilege. He was perfectly within his rights to do so.

¶ 63 To be sure, issues as weighty as attorney-client privilege are typically ironed out pretrial

via motions in limine. Most circuit judges surely would prefer it that way. Our circuit judge here,

an experienced and respected jurist, was one of them. He asked the parties for pretrial motions on

substantive issues to avoid tying up the trial once it began. And he did not hide his frustration

that Trutenko waited until after trial commenced to raise his objection, when he clearly had the

opportunity to raise this issue pretrial.

¶ 64 Indeed, had the trial court denied Trutenko’s privilege objection on that ground alone, we

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likely would have upheld it. Trial courts have wide discretion in managing their cases, including

the filing of motions in limine, whether to require them, whether to rule pretrial or defer until

trial, how to conduct its hearings, and whether to impose sanctions on parties who do not respect

the court’s pretrial scheduling orders. See People v. Owen, 299 Ill. App. 3d 818, 823-24 (1998).

¶ 65 To its credit, the trial court here took a different route. The court allowed the objection to

be made, noting the defense’s claim that it had received a significant “dump” of documents

before trial, that this case moved quite quickly from indictment to trial compared to other cases

in Cook County, and most importantly, emphasizing the gravity of the issue being raised. By no

means could we find an abuse of discretion in the circuit court’s decision to allow this objection

to be raised midtrial. The State’s claim of untimeliness is without merit.

¶ 66 The confusion here may result from the State blurring the difference between a

recognized “motion to suppress” in the law, on the one hand, and the State’s ability to appeal

orders “suppressing evidence” under Illinois Supreme Court Rule 604(a)(1) (eff. Oct. 19, 2023),

the mechanism by which the State prosecutes this appeal, on the other. They are manifestly

different uses of that phraseology; the latter is far broader than the former. It merits a brief

discussion.

¶ 67 Again, this appeal comes to us via Rule 604(a)(1), which allows the State to appeal

orders “suppressing evidence.” Id. Our supreme court has made clear that, for purposes of Rule

604, this phrase has an expansive meaning, not limited to rulings on the few types of motions to

suppress that the law recognizes. People v. Holmes, 235 Ill. 2d 59, 70 (2009) (noting supreme

court’s “repeated emphasis that ‘the substantive effect of a trial court’s pretrial order, not the

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label of the order or its underlying motion, controls appealability under Rule 604(a)(1).’ ”

(quoting People v. Drum, 194 Ill. 2d 485, 489-90 (2000)).

¶ 68 That is, an order other than one of the few recognized motions to suppress can be an

order “suppressing evidence” under the rule; “there is no substantive difference between

excluded evidence and suppressed evidence for purposes of Rule 604(a)(1).” Id. (quoting Drum,

194 Ill. 2d at 485). The court focuses on the substance of the trial court’s order and whether it

has the effect of suppressing evidence—i.e., whether the evidence is wholly excluded from the

factfinder’s consideration or whether the State has an alternative avenue to admitting it. Id.

¶ 69 For example, the denial of a motion to compel a defendant to disclose the passcode on his

smart phone was appealable under Rule 604(a)(1), though on its face it “did not directly suppress

specifically identified evidence,” because the order “prevented the State from accessing any

evidence on the phone and presenting it to the factfinder, thereby having the substantive effect of

suppressing evidence.” People v. Sneed, 2023 IL 127968, ¶ 56. The denial of a motion to admit

the prior testimony of two witnesses who refused to testify at trial was appealable under Rule

604(a)(1), because “[s]ubstantively, the trial court’s order bars the use of this testimony at

defendant’s trial, regardless of whether the order is characterized as ‘excluding’ the testimony or

‘suppressing’ it.” Drum, 194 Ill. 2d at 491.

¶ 70 In other words, two things can be true at the same time: (1) Trutenko’s objection based

on attorney-client privilege was not a “motion to suppress,” at least not insofar as that moniker

would subject him to some general rule that it be raised pretrial; and (2) the ruling sustaining that

objection (on privilege and other evidentiary grounds) was an order “suppressing evidence”

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under Rule 604(a)(1).

¶ 71 As we reject the OSP’s challenge to the timeliness of Trutenko’s privilege objection, we

move to the substance of the privilege question.

¶ 72 II

¶ 73 As the party asserting an attorney-client privilege, it was Trutenko’s burden to establish

its elements by “showing the facts which give rise to the privilege.” (Internal quotation marks

omitted.) In re Marriage of Decker, 153 Ill. 2d 298, 328 (1992). The privilege applies only

“[w]here legal advice of any kind is sought from a lawyer in his or her capacity as a lawyer [and]

the communications relating to that purpose [are] made in confidence by the client, *** unless

the protection is waived” by the client. Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL

113107, ¶ 30. We review a finding of attorney-client privilege de novo. Id. ¶ 65.

¶ 74 “The attorney-client privilege, like all testimonial privileges, is inherently inconsistent

with the search for truth because it prevent[s] otherwise relevant and admissible evidence from

being disclosed.” (Internal quotation marks omitted.) People v. Radojcic, 2013 IL 114197, ¶ 41.

The privilege thus “constitutes a departure from the general duty to disclose and, accordingly,

must be strictly confined within its narrowest possible limits.” (Internal quotation marks

omitted.) Id.

¶ 75 A

¶ 76 To recap some background facts: as far as the CCSAO was concerned, Fangman was

never Trutenko’s lawyer, full stop. He was the CCSAO’s lawyer, assigned to represent the office

on the document subpoena, and his communications with Trutenko were fact-finding efforts in

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the service of that singular role. Horvat was assigned to represent Trutenko in connection with

the witness subpoena, but only in Trutenko’s official capacity as a government officer and agent

of the CCSAO.

¶ 77 The trial court saw things differently. It found that an attorney-client relationship arose

from Fangman’s perceived role in handling the witness subpoena before Horvat took over. The

trial court acknowledged that the relationship was unintended, and vigorously disavowed, by

Fangman and Scheller. But from Trutenko’s perspective at the time, it reasonably appeared that

Fangman represented him in connection with the witness subpoena.

¶ 78 The view that Fangman wandered into the role of Horvat’s de facto predecessor is a

debatable one, finding at least some factual support in the record. But for reasons that will soon

become evident, the trial court never specified whether, in its view, Fangman represented

Trutenko in his individual or official capacity. There was undisputed evidence that Scheller

appointed Horvat as Trutenko’s official lawyer, not his personal one. And as Scheller and

Fangman emphasized, that limitation was not just a contingent fact about Horvat’s particular

relationship with Trutenko. It was also a matter of law.

¶ 79 By statute, an ASA (Fangman or Horvat) may only represent a county or state officer

(Trutenko) in an action or proceeding brought against the officer in his or her “official capacity.”

55 ILCS 5/3-9005(a)(4) (West 2022); People v. Wilkinson, 285 Ill. App. 3d 727, 733 (1996) (“A

State’s Attorney is the statutory attorney for a county officer who requires legal representation in

his official capacity.”).

¶ 80 So even if we assume, for the sake of argument, that Fangman represented Trutenko in

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connection with the witness subpoena, that representation was limited, as a matter of law, to

Trutenko’s official capacity.

¶ 81 The trial court found the distinction between official-capacity and individual-capacity

representation, as enforced by the statute, to be “in this context *** a false dichotomy.” The trial

court’s point, as we understand it, is this: in the “context” of a privilege analysis, it doesn’t

matter whether Fangman represented Trutenko in his official or individual capacity. Either way,

representation would give rise to a privilege that was Trutenko’s, personally, to assert or waive.

¶ 82 Trutenko appears to take the same position in his brief: “It is immaterial that an ASA like

Fangman cannot represent private individuals. As the trial court found, at the time, Mr. Trutenko

was not a private individual. He was an Assistant State’s Attorney and entitled to representation

under the statute. (55 ILCS 5/3-9005.) That was why Fangman represented him.”

¶ 83 That position is simply wrong. The question is not whether Fangman was representing

Trutenko. The question is not whether their conversations were “privileged.” The question is

who holds that privilege—who is the client? And to answer that question, the difference between

representing someone in their official capacity versus their personal capacity is not immaterial or

a false dichotomy; it is the dispositive factor. If Fangman represented Trutenko in his official

capacity, as opposed to his individual capacity, then Fangman’s true client—and thus the holder

of any attorney-client privilege—was the CCSAO.

¶ 84 The United States and Illinois Supreme Courts have recognized that the “objectives” of

the attorney-client privilege apply to “governmental clients” or “ ‘government entities,’ ”

including “ ‘obtaining legal advice founded on a complete and accurate factual picture.’ ” United

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States v. Jicarilla Apache Nation, 564 U.S. 162, 169-70 (2011) (quoting Restatement (Third) of

the Law Governing Lawyers § 74, cmt. b, at 573-74 (2000)); In re Information to Discipline

Certain Attorneys of the Sanitary District of Chicago, 351 Ill. 206, 268 (1932) (applying

privilege to public entity); Fox Morraine, LLC v. United City of Yorkville, 2011 IL App (2d)

100017, ¶ 63 (same); United States v. Zingsheim, 384 F.3d 867, 871 (7th Cir. 2004) (“The

attorney-client privilege covers conversations between the prosecutors (as attorneys) and client

agencies within the government.”). And that is exactly what the CCSAO dispatched Fangman to

provide here.

¶ 85 Under our supreme court’s rules, the same general principles that govern the relationship

between “organizational clients,” their attorneys, and their other agents apply both to private

organizations, like corporations, and to “governmental organizations,” like the CCSAO. Ill. R.

Prof’l Conduct (2010) R. 1.13 cmt. 9 (eff. Jan. 1, 2010). This includes the attorney-client

privilege. Restatement (Third) of the Law Governing Lawyers § 74, cmt. a, at 573 (2000)

(privilege “ordinarily applies to governmental agencies as to other organizations”).

¶ 86 Because an “entity” or “organizational client” can only act through its agents, the latter

will inevitably “communicate[ ] with the organization’s lawyer in [their] organizational

capacity,” or official capacity. Ill. R. Prof’l Conduct (2010) R. 1.13 cmt. 2 (eff. Jan. 1, 2010).

“This does not mean, however, that [the organization’s agents] are the clients of the lawyer”

during those discussions. Id. Rather, the client remains the organization itself, and as always,

“the privilege belongs to the client.” Lama v. Preskill, 353 Ill. App. 3d 300, 305 (2004); Ill. R.

Prof’l Conduct (2010) R. 1.13 cmt. 2 (eff. Jan. 1, 2010); John Doe Corp. 1 v. Huizenga

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Managers Fund, LLC, 2021 IL App (2d) 200513, ¶ 84 (“the privilege belongs to the

[organization] itself”).

¶ 87 In short, when an organization’s attorney represents or otherwise communicates with an

agent of an organization in his or her official (organizational) capacity, those conversations are

privileged, but the privilege belongs to the organization, as the principal and true client.

¶ 88 Here, Trutenko’s involvement in the 2020 Wilson trial stemmed directly from his role as

the prosecutor in Wilson’s 1989 trial. Thus, he was subpoenaed to testify in his official capacity,

as an agent of the CCSAO and the State more generally. He communicated with Fangman in his

official capacity. The CCSAO had its own interests in the witness subpoena, which sought to

compel testimony from an agent of the CCSAO about his—and thus the State’s—conduct and

alleged non-disclosures in a criminal prosecution. Fangman was, at least in the first instance, the

CCSAO’s lawyer, and he could not represent Trutenko in anything but his official capacity.

¶ 89 So even if we grant, for argument’s sake, that Fangman represented Trutenko in his

official capacity, his conversations with Trutenko were covered by an attorney-client privilege

that belongs to—and is controlled by—the CCSAO, not Trutenko personally. See In re Grand

Jury Investigation, 399 F.3d 527, 534-35 (2d Cir. 2005) (noting that “in the government context,

the individual consulting with his official attorney may not control waiver of the privilege”). And

the CCSAO has affirmatively waived its privilege.

¶ 90 Put differently, Trutenko has no attorney-client privilege to assert unless he can establish

that Fangman represented him in his individual capacity, as his personal lawyer, bound to protect

his personal interests, rather than those of the CCSAO, and ultimately, the People. But Fangman

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could not undertake that representation as a matter of law.

¶ 91 B

¶ 92 Trutenko was not “entitled *** under the statute,” in his counsel’s phrase, to a personal

lawyer at taxpayer expense. As a government official, conducting public business, Trutenko was

entitled to an official lawyer, one whose ultimate obligation was to serve the public interest and

uphold the law. See 55 ILCS 5/3-9005(a)(4) (West 2022). By limiting ASAs to official-capacity

representation, with a privilege that runs to and is controlled by the relevant government entity,

this statute helps ensure that ASAs, as government lawyers, serve the interests of the public, not

the personal interests of individual officials.

¶ 93 “Government lawyers,” including ASAs like Fangman, “are public servants, and their

client is the government, not officeholders in their personal capacities.” In re Grand Jury

Subpoena, 828 F.3d 1083, 1093 (9th Cir. 2016). Thus, in certain contexts, “ ‘the Government

may invoke the attorney-client privilege’ ” to prevent disclosure of “conversations between

government officials and government lawyers,” but there is simply no precedent for holding

“that officeholders in their personal capacity may invoke the privilege.” (Emphasis omitted.) Id.

at 1092 (quoting Jicarilla Apache Nation, 564 U.S. at 170).

¶ 94 Even when a government official’s potential or alleged “noncompliance with *** legal

obligations” is the topic of conversation—as it was here, since that is exactly what Wilson put at

issue—this “does not mean that during those conversations, the government lawyers are acting as

the personal attorneys for the officeholders.” Id. at 1093.

¶ 95 Indeed, when the federal court of appeals searched for relevant precedent in 2016, it had

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this to report: “In no instance, as far as we are aware, has a former officeholder successfully

claimed that a government staff lawyer discussing a matter relating to official business was

representing the officeholder personally during a conversation had while both were government

employees.” Id. at 1092. Our updated search has come up equally empty.

¶ 96 It is widely, if not universally, understood that when a government official speaks to a

government attorney, the privilege belongs to the government. A holding that recognized a

personal attorney-client privilege between Trutenko and Fangman, one that Trutenko controlled,

would be a singular outlier without any identifiable precedent. It would flatly contradict section

3-9005 of the Counties Code, the very statute on which Trutenko relies. It would undermine the

statute’s obvious purpose of tethering government lawyers to the People’s interests. And it would

fundamentally blur the distinction between government lawyers and private counsel.

¶ 97 As public servants, government lawyers have a unique responsibility to serve the public’s

compelling interests in “honest government” and “compliance with the law” by public officials;

to serve those interests, government lawyers are thus duty-bound to assist the law in “uncovering

illegality” and “exposing wrongdoing” among those who hold public office. In re a Witness

Before the Special Grand Jury, 288 F.3d 289, 293 (7th Cir. 2002); In re Lindsey, 158 F.3d 1263,

1266, 1273 (D.C. Cir. 1998) (per curiam); In re Grand Jury Subpoena Duces Tecum, 112 F.3d

910, 921 (8th Cir. 1997).

¶ 98 This stands in stark contrast to the duties of private counsel, whose appropriate role is to

defend clients against criminal charges and protect them from public exposure. In re Special

Grand Jury, 288 F.3d at 293; In re Lindsey, 158 F.3d at 1272. Precisely this difference has led

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our supreme court to caution that the usual expectations of confidentiality will often have to

yield to a government lawyer’s overriding duties to prevent, disclose, and remedy wrongful

official acts. Ill. R. Prof’l Conduct (2010) R. 1.13 cmt. 9 (eff. Jan. 1, 2010).

¶ 99 Government lawyers thus “stand in a far different position from members of the private

bar” when an investigation or prosecution of alleged “criminal offenses *** committed by those

in government” has commenced. In re Lindsey, 158 F.3d at 1272. True, the accused official’s

personal interests in avoiding legal or other exposure are particularly acute when the criminal

process has been brought to bear. But so too are the duties of a government lawyer, including

one who may have represented the accused in his official capacity, as an agent of the attorney’s

government client. In this context, any duties the government lawyer may have owed to the

accused must yield to the “higher, competing duty to act in the public interest.” In re Special

Grand Jury, 288 F.3d at 293; see In re Lindsey, 158 F.3d at 1272; In re Grand Jury Subpoena

Duces Tecum, 112 F.2d at 921.

¶ 100 This point has implications for the attorney-client privilege, for reasons that the Seventh

Circuit has very aptly described: “It would be both unseemly and a misuse of public assets to

permit a public official to use a taxpayer-provided attorney to conceal from the taxpayers

themselves otherwise admissible evidence of financial wrongdoing, official misconduct, or abuse

of power.” In re Special Grand Jury, 288 F.3d at 293; see In re Grand Jury Subpoena Duces

Tecum, 112 F.2d at 921 (it would be “a gross misuse of public assets” to allow “any part” of

government to “use its in-house attorneys as a shield against the production of information

relevant to a *** criminal investigation”).

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¶ 101 Trutenko may not direct a government lawyer to conceal otherwise admissible evidence

of his alleged misconduct in office from the criminal process. That “unseemly *** misuse of

public assets” is precisely what the trial court’s ruling allowed Trutenko to do, in the name of the

attorney-client privilege. That ruling was error.

¶ 102 C

¶ 103 To answer the privilege question, the trial court conducted a factual inquiry into whether

Trutenko could reasonably believe, in a nutshell, that Fangman was the attorney responsible (at

least initially) for handling the witness subpoena. This is a debatable point, and we are not here

to quarrel with the trial court’s answer to this particular question, as far as it goes, or to review

any of the factual findings that the court made along the way.

¶ 104 Our problem, in the first instance, is with the guiding legal assumption of this inquiry. It

makes all the difference whether Fangman’s perceived role in handling the witness subpoena

landed him the role (if any at all) of Trutenko’s official versus personal attorney. Neither the trial

court’s inquiry nor Trutenko’s arguments appreciate that this distinction is nothing other than the

law’s way of identifying the true client, and thus the holder of the privilege, in an organizational

context.

¶ 105 So Trutenko may have thought that the official-capacity representation to which he was

“entitled under the statute” gave him a personal attorney-client privilege with Fangman. But that

doesn’t make it so. In re Grand Jury Subpoena Duces Tecum, 112 F.2d at 923 (“[W]e know of

no authority *** holding that a client’s beliefs, subjective or objective, about the law of privilege

can transform an otherwise unprivileged conversation into a privileged one.”).

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¶ 106 Trutenko’s true burden on this issue is to show that Fangman was his personal attorney,

with all that entails. The trial court, it bears noting, never found that Fangman acted as

Trutenko’s personal attorney, believing the distinction between official and personal

representation to be a “false dichotomy.” If anything, the trial court seemed to embrace the

notion that Fangman was representing Trutenko in his official capacity. But all that mattered, in

the trial court’s view, was that Fangman “represented” Trutenko, one way or the other.

¶ 107 And it would have been a remarkable ruling, indeed, had the trial court determined that

Fangman represented Trutenko in his personal capacity. Under the general test for an attorney-

client relationship that the trial court applied, it would amount to this: an experienced prosecutor

was somehow led to reasonably believe that his fellow prosecutor at the CCSAO offered him

personal representation—in connection with a defense subpoena arising from allegations of his

own misconduct in a pending criminal case—that was prohibited by state law.

¶ 108 Suffice it to say that nothing Fangman did here, as far as the hearing evidence

established, comes anywhere close to showing that Trutenko was duped into this belief. And to

repeat, we can reach that conclusion without having to overturn the particular findings that the

trial court actually made.

¶ 109 This shared legal error is part of a more general failure to see the forest for the trees. The

privilege issue, as it arises in this case, is not a particularly fact-bound question; it is, as we have

insisted, a matter of principle. Trutenko would arrogate to himself the authority to control a

government lawyer, and he would demand that a government lawyer protect his own personal

interest in concealing evidence of his alleged misconduct in public office from the criminal

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process. He would do this in the name of the attorney-client privilege and, ironically enough, the

good-government provisions of section 3-9005.

¶ 110 That is the real heart of the matter—and reason enough to reject Trutenko’s assertion of a

personal attorney-client privilege with Fangman. So we will leave it at that, and close with a few

observations, mostly to ensure that our decision today is not misunderstood.

¶ 111 For one, in a criminal investigation or prosecution, public officials have the same rights

as anyone else, and nothing we have said diminishes those rights in any way. A public official

who seeks confidential legal advice and candid discussion of possible criminal exposure can of

course consult a private attorney, and those consultations will be fully covered by the attorney-

client privilege. Nor does the government lawyer’s duty to disclose illegal conduct in office

imply any duty of self-incrimination; the fifth-amendment privilege is unaffected by one’s status

as a public official. Far from diminishing the rights of public officials, our holding today simply

ensures that they do not help themselves, at taxpayer expense, to an additional layer of legal

protection in the criminal arena: they may not assert control over a government lawyer’s ability

to provide probative evidence of their alleged misconduct in office.

¶ 112 Our insistence on the fundamental difference between government lawyers and private

counsel should not be taken to cast doubt on any statutes that may specifically provide for a

government lawyer to represent a public official in his personal capacity. And we express no

view about the application of the privilege in that context. But to the extent that such statutory

arrangements may exist, section 3-9005 of the Counties Code, the law that entitled Trutenko to

official-capacity representation, is not one of them. And Fangman was not a lawyer of this kind.

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He did not stand in the shoes of private counsel.

¶ 113 Lastly, it is one thing to hold, as we do here, that any attorney-client privilege that arose

in connection with the witness subpoena belonged to the CCSAO. It would be quite another to

hold that the CCSAO could validly assert that privilege here. Several federal circuits have held

that the government’s usual attorney-client privilege must yield to a criminal probe of one of its

officials. In re Special Grand Jury, 288 F.3d at 293; In re Lindsey, 158 F.3d at 1272; In re Grand

Jury Subpoena Duces Tecum, 112 F.2d at 921. But that is not a question we face at this juncture,

as the CCSAO has waived its privilege with Fangman.

¶ 114 Trutenko has no attorney-client privilege with Fangman. The trial court’s order excluding

their communications from evidence, on the ground of attorney-client privilege, was error.

¶ 115 III

¶ 116 After finding that (most of) the Trutenko-Fangman communications were privileged, the

trial court went on to find, sua sponte, that they were inadmissible for additional reasons that had

not been raised by the defense. We consider them in turn.

¶ 117 A

¶ 118 But as a preliminary matter, the defendants argue that we lack jurisdiction to review the

trial court’s sua sponte rulings because the OSP did not include them in its notice of appeal. We

find no merit to this argument, so we will be brief.

¶ 119 We begin with the reminder from our earlier discussion that any order that has the

substantive effect of suppressing evidence, regardless of the basis for that order—privilege, a

constitutional violation, an evidentiary ruling, or anything else—is appealable under Illinois

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Supreme Court Rule 604(a)(1) (eff. April 15, 2024). Sneed, 2023 IL 127968, ¶ 56; Holmes, 235

Ill. 2d at 70; Drum, 194 Ill. 2d at 485.

¶ 120 The trial court incorporated both its finding of privilege and its further sua sponte

evidentiary rulings into a single omnibus written order, entered on November 8, 2023, addressing

the admissibility of the Trutenko-Fangman communications. The order stated that “for the

reasons stated in open court *** certain evidence is inadmissible based upon issues of the

attorney client privilege (Illinois Supreme Court Rule 502), relevance (Rule 401), hearsay (Rule

802), and the cumulative effect of the evidence (Rule 403).” As specified in the notice of appeal,

the OSP “appeal[ed] *** the November 8, 2023 order” and sought “an appellate court ruling

reversing [that] order such that evidence of the statements between Fangman and Defendant

Trutenko may be introduced in this trial.”

¶ 121 “[A] notice of appeal will confer jurisdiction on an appellate court if the notice, when

considered as a whole, fairly and adequately sets out the judgment complained of and the relief

sought so that the successful party is advised of the nature of the appeal.” (Internal quotation

marks omitted.) In re Marriage of O’Brien, 2011 IL 109039, ¶ 22. In applying this standard, the

notice of appeal “is to be liberally construed.” Id.

¶ 122 The notice of appeal, liberally construed and considered as a whole, “fairly apprised the

defendants that the [OSP] was seeking review (and reversal) of the entire order entered on the

specified date.” Borchers v. Franciscan Tertiary Province of the Sacred Heart, Inc., 2011 IL

App (2d) 101257, ¶ 38. Granted, the notice of appeal describes the November 8 order as “finding

an attorney-client relationship between Defendant Nicholas Trutenko and Paul Fangman, and

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thereby suppressing the statements between Defendant Trutenko and Fangman on grounds of

privilege.” But this descriptive language, in the context of the notice as a whole, cannot fairly be

taken to limit the appeal to this one basis for the trial court’s order.

¶ 123 This conclusion is evident from the relief sought: a ruling that allows “evidence of the

statements between Fangman and Defendant Trutenko [to] be introduced in this trial.” Reversing

the privilege finding alone would not result in this relief. In fact, anything short of full review of

the order would result in a merely advisory opinion, since it would be “impossible for this court

to grant effectual relief.” (Internal quotation marks omitted.) In re Marriage of O’Brien, 2011 IL

109039, ¶ 20. The descriptive language in the notice of appeal does not paint us into that corner.

We have jurisdiction to review the order as a whole and grant any appropriate relief. Ill. S. Ct. R.

604(a)(1) (eff. Apr. 15, 2024); Ill. S. Ct. R. 615(b)(1) (eff. Jan. 1, 1967).

¶ 124 B

¶ 125 The trial court ruled that the communications between Fangman and Trutenko were in

each instance either hearsay, irrelevant, and/or cumulative of other evidence. We start with the

hearsay ruling.

¶ 126 We generally review evidentiary rulings for an abuse of discretion, but our review is

de novo if “a trial court’s exercise of discretion has been frustrated by an erroneous rule of law,”

such as a misinterpretation of the hearsay rule. (Internal quotation marks omitted.) People v.

Caffey, 205 Ill. 2d 52, 89 (2001); People v. Aguilar, 265 Ill. App. 3d 105, 109 (1994); see People

v. Hall, 195 Ill. 2d 1, 21 (2000) (exception to discretionary review of evidentiary rulings “applies

in cases that involve questions of statutory interpretation [citation], or other questions of law”).

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Whether a statement is hearsay is a purely legal question, an interpretation of a rule of evidence,

which we review de novo. People v. Padilla, 2021 IL App (1st) 171632, ¶ 120; People v. Risper,

2015 IL App (1st) 130993, ¶ 34; People v. Sundling, 2012 IL App (2d) 070455-B, ¶ 82; People

v. Saunders, 288 Ill. App. 3d 523, 525 (1997).

¶ 127 In his testimony at the evidentiary hearing, Fangman described his conversations with

Trutenko, just the two of them—if we discount the Zoom conference on September 27 that also

included Horvat and the special prosecutors. And we can safely exclude that conversation from

our analysis, as the trial court recognized that no privilege attached to that conversation, given

the presence of the third-party special prosecutors.

¶ 128 So that conversation aside, the communications were between only Fangman and

Trutenko. And the trial court readily recognized that Trutenko’s statements to Fangman could

not be excluded as hearsay, as they were statements of a party opponent. See Ill. R. Evid.

801(d)(2) (eff. Jan. 1, 2011).

¶ 129 Which left only Fangman’s words communicated to Trutenko. The trial court held, in one

fell swoop, that all of Fangman’s statements to Trutenko were hearsay: “To the extent that

they’re statements not by the Defendant, Rule 801, 802, talk about hearsay, they’re hearsay.”

¶ 130 We cannot uphold that ruling for several reasons. First, it obviously cannot be true that

simply because out-of-court statements of a party opponent are not hearsay by definition, it

follows that out-of-court statements by everyone else are. The lengthy and detailed hearsay rules

in article 8 would be reduced to a sentence or two if that were true.

¶ 131 Second and in that same vein, while a trial court typically makes hearsay objections

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statement by statement, and we review them as such, the court here simply ruled that all of

Fangman’s statements were hearsay in one broad stroke. That simply cannot be true, either. Or if

it were, some unusual circumstance would be identified that justified the court’s wholesale

exclusion of testimony. We are aware of no such circumstance here.

¶ 132 And third, as best we can discern from the record, we can confidently say that the vast

majority of Fangman’s statements appear not to be hearsay at all. Hearsay is an out-of-court

statement offered to prove the truth of the matter asserted. Ill. R. Evid. 801(c) (eff. Jan. 1, 2011).

Generally speaking, Fangman’s statements to Trutenko fall into one of two categories.

¶ 133 The first was inquisitorial, not involving any assertions or statements whatsoever. As the

trial court noted, the conversations revolved around Trutenko’s role in Wilson’s 1989 trial and,

in particular, his dealings with Coleman. Fangman was obviously not asserting anything about

these topics to Trutenko, of all people. Fangman was asking Trutenko about them, precisely

because he did not know, and therefore had little or nothing to assert. In other words, Fangman

had no hearsay about Trutenko’s dealings with Coleman to offer.

¶ 134 The second category involved statements, to be sure, but ones that were clearly not

offered for the truth of the matter asserted. To the extent that Fangman was in a position to assert

anything of interest to Trutenko, it was this cluster of facts: Wilson’s defense was putting

Coleman’s credibility front and center in the upcoming (2020) trial; Coleman was presumed

dead and thus declared unavailable, and for this reason, the credibility attack now took aim at

Trutenko himself, the propriety of his dealings with Coleman, and whether he had maintained

contact with Coleman—which is why the defense was seeking his personnel file and testimony.

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¶ 135 Fangman’s statements to Trutenko were not offered to prove any of these facts. These

facts were not remotely in dispute. As the transcript of proceedings shows, Wilson’s defense

lawyer in the 2020 trial had made clear his reasons for the subpoenas and his focus on

Trutenko’s relationship with Coleman; Fangman was just relaying them to Trutenko.

¶ 136 Rather, Fangman’s statements were offered to show their effect on Trutenko, as the

listener, a well-established, non-hearsay purpose. People v. Britz, 112 Ill. 2d 314, 320 (1986);

People v. Griffin, 2022 IL App (1st) 190499, ¶ 40. The State wanted to establish that Trutenko

was on notice that his (past and current) relationship with Coleman and his conduct at the 1989

trial were at issue in the 2020 trial, as well as the fact that Coleman was unavailable and believed

to be deceased. These facts, under the State’s theory, would demonstrate that Trutenko stood

mute in the face of this information, despite his obligation to disclose relevant, exculpatory

information. “A statement that is offered to prove that a listener had notice of the information

contained therein, rather than to prove the truth of the matter asserted, is not hearsay.” Piser v.

State Farm Mutual Auto Insurance Co., 405 Ill. App. 3d 341, 351 (2010). Fangman’s statements

to Trutenko fall squarely within this category. They are not hearsay.

¶ 137 At the close of its hearsay ruling, the court recognized that this effect-on-the-listener

theory of admissibility was accepted in the law but opined that the exception is overused, often

allowing in statements that in reality are being offered for their truth. If that is true, this case does

not present that example, as we have just noted. In any event, there is no jury here; we are

confident that the trial court, acting as both gatekeeper of evidence and finder of fact, will

separate the permissible from the impermissible purposes.

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¶ 138 To be crystal clear, by no means are we suggesting that no hearsay is contained within

Fangman’s testimony regarding his communications with Trutenko in September 2020. That

would making the same error as the trial court in the other direction. The trial court is free to

entertain individualized hearsay objections on remand, consistent with what we have said above.

¶ 139 We next consider the question of relevance. Fangman’s statements to Trutenko are

directly relevant to elements of certain charged offenses. The trial court found otherwise,

primarily because (1) it viewed their communications as limited to Trutenko’s role in Wilson’s

1989 trial, while (2) the indictment only charged conduct in connection with Wilson’s 2020 trial.

Each of these premises is demonstrably mistaken. In the proffered communications, Fangman

also put Trutenko on notice of the issues at the heart of the 2020 trial, as we just described; their

relevance is by no means limited to Trutenko’s actions in 1989. And the trial court’s reading of

the indictment is unreasonably narrow.

¶ 140 Count 3 charges Trutenko with obstructing justice. 720 ILCS 5/31-4 (West 2022). To this

end, the indictment alleges that Trutenko, “with the intent to obstruct justice, knowingly impeded

and hindered the defense and prosecution” in the Wilson case, in that he “failed to disclose his

ongoing relationship with [Coleman] and failed to provide information that [he] knew about

[Coleman], with knowledge that [Coleman] was a key witness to [Wilson’s] prosecution and

defense, and such actions by [Trutenko] were material to the issues in the case.”

¶ 141 There is no dispute about the conduct elements of the obstruction charge: Trutenko

allegedly failed to disclose his ongoing relationship with Coleman, and he failed to provide

information that he knew about Coleman’s whereabouts, or at least Coleman’s availability.

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Trutenko admitted as much on the witness stand in the 2020 Wilson trial. But the State must also

prove that Trutenko’s concealments were material to the Wilson case, and that Trutenko

withheld information with the requisite mental states, such that he knowingly impeded the

prosecution and defense of Wilson with the intent to obstruct justice. See id.

¶ 142 To satisfy these materiality and mens rea elements, the State seeks to prove that Trutenko

knew—because Fangman told him—that Coleman’s credibility was a (if not the) central issue in

the 2020 Wilson trial, and more specifically, that Coleman was deemed unavailable for cross-

examination because nobody could locate him. These points are exactly what Fangman, by his

own account, conveyed to Trutenko. The pertinent communications thus bear directly on whether

Trutenko concealed material information with the mental states required by the obstruction

statute. They are anything but irrelevant.

¶ 143 Counts 6 and 7 charge Trutenko with official misconduct, based on these concealments.

Id. § 33-3(a)(1). The offense requires proof that in concealing what he knew about Coleman,

Trutenko intentionally failed to perform a mandatory (disclosure) duty required by law. Id. The

communications putting Trutenko on notice that he had material information in his possession

are relevant to the proof of this mens rea element.

¶ 144 We thus cannot uphold the court’s exclusion of this testimony based on relevance.

¶ 145 Fangman’s communications with Trutenko are not only probative of these mens rea

elements—they are uniquely probative, shedding light on Trutenko’s mental states that no other

evidence can provide. Which is to say that they are not cumulative evidence, the final basis of

the trial court’s exclusion of this evidence.

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¶ 146 The trial court apparently thought they were cumulative because Trutenko admitted that

he did not disclose exculpatory information when he testified at the Wilson trial. Granted,

Trutenko admitted that much, and his testimony thus speaks to the (undisputed) conduct

elements of the offenses. But not to the materiality and mens rea elements. It should go without

saying that Trutenko has never testified or otherwise admitted that he intended to obstruct

justice, that he knew he was impeding the prosecution and defense of Wilson, or to any other

required showing about his state of mind.

¶ 147 In addition to Trutenko’s testimony at the Wilson trial, the trial court also listed “other

testimony in evidence before the court already” and what it called the “stipulated operative facts”

as grounds for finding the Fangman-Trutenko communications to be cumulative. It is not clear to

us whether any of this, in the trial court’s view, rendered Fangman’s statements (as opposed to

Trutenko’s) cumulative. But if so, that is clearly wrong.

¶ 148 The “stipulated operative facts” refers to a brief, bare-bones summary of the 1989 Wilson

trial. It stipulates that “[a]t Wilson’s 1989 retrial, Assistant State’s attorney[ ] Nicholas Trutenko

*** acted as prosecutor[ ],” and that the “trial included testimony from William Coleman [that]

Wilson admitted to the killings while both men were inmates in the Cook County jail.” It goes on

to describe the split verdict and the TIRC findings that led to the second retrial in 2020. This

undisputed background information provides no evidence of Trutenko’s alleged mens rea.

¶ 149 And neither does the testimony that was already in evidence at the bench trial. This much

should be obvious from the simple fact that these were conversations between Fangman and

Trutenko. Nobody else did, or could, testify to them. So only the communications between

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Fangman and Trutenko speak directly to Trutenko’s mental states. And only the fact, as Fangman

would have it, that Trutenko was repeatedly put on notice of the materiality of the concealed

information provides evidence that his ongoing failures to disclose were not inadvertent.

¶ 150 In sum, the Trutenko-Fangman communications have unique probative value to the mens

rea and materiality elements of certain obstruction and official-misconduct charges. Fangman’s

statements to Trutenko are admissible where they serve these non-hearsay purposes.

¶ 151 C

¶ 152 Naturally, the communications also included statements made by Trutenko to Fangman.

The trial court did not find them to be hearsay, but it did find them irrelevant, for this reason:

Trutenko was explaining his role in Wilson’s 1989 trial, but the indictment only charged his

2020 conduct. So Trutenko’s earlier role in the case was just “background,” with no direct

relevance to the charged offenses.

¶ 153 In particular, the trial court ruled in this context that the 1989 federal plea that Trutenko

negotiated for Coleman and failed to disclose to Wilson was not relevant because “the indictment

here *** does not charge Trutenko with a failure to disclose a federal deal.”

¶ 154 But it does and then some. Count 2 alleges that Trutenko committed perjury when he

testified that he did not know or remember anything about Coleman’s federal plea deal.

Specifically, he testified that “I don’t know why he was admitted to the Feds, and I don’t know

what happened on his federal stuff. I don’t even know what his federal stuff was other than it

looks like he had some type of bank fraud ***. As I sit here now I don’t remember what that

was.” Later: “I’m saying I don’t remember anything about anything on the federal level.” And

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when asked if he spoke to federal prosecutors on Coleman’s behalf, Trutenko testified, “I don’t

know. I have no recollection of any of that.”

¶ 155 According to Fangman, as detailed in the proffer, Trutenko engaged him in explicit and

“substantial” discussion of Coleman’s plea deals, including the federal plea deal, in some of their

September 2020 conversations leading up to the 2020 Wilson trial. Trutenko’s alleged ability to

recall and discuss the particulars of that plea deal only days before his testimony is obviously and

directly relevant to whether he knowingly made false statements on the witness stand, as required

for the offense of perjury. 720 ILCS 5/32-2(a) (West 2020). Here, too, the Fangman-Trutenko

communications have unique probative value for the State’s proof of a required mental state.

¶ 156 Returning to Count 6: the trial court failed to grasp that the official misconduct charged

in this count dates back to 1989 and encompasses Trutenko’s failure to disclose the federal plea

deal. The theory of this charge, in a nutshell, is Trutenko’s continuing failure to comply with his

Brady and Giglio obligations to disclose exculpatory and impeachment evidence, failures that

began in his role as prosecutor in Wilson’s 1989 trial. See Brady v. Maryland, 373 U.S. 83

(1963); Giglio v. United States, 405 U.S. 150 (1972).

¶ 157 The indictment thus alleges that Trutenko “failed to disclose as prosecutor of Jackie

Wilson’s 1989 murder case, exculpatory evidence or impeachment evidence regarding William

Coleman” and further failed to disclose this evidence, in violation of his continuing Brady and

Giglio obligations, before his 2020 testimony. (Emphases added.) See Fields v. Wharrie, 672

F.3d 505, 515 (7th Cir. 2012) (“[A] prosecutor’s Brady and Giglio obligations remain in full

effect on direct appeal and in the event of retrial.”).

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¶ 158 So Trutenko’s dealings with Coleman in 1989, including his involvement in the federal

plea deal, are not innocuous “background” information with no direct relevance to any charged

conduct. They are part of—the beginning of—the official misconduct charged in Count 6, based

on Trutenko’s continuing failure to disclose material information to Wilson. The facts and

circumstances of this conduct are hardly irrelevant, and Trutenko’s representations to Fangman

about these matters are thus probative of whether he “[i]ntentionally *** fail[ed] to perform any

mandatory duty as required by law.” 720 ILCS 5/33-3(a)(1) (West 2022).

¶ 159 Count 7 also charges Trutenko with official misconduct, based on the same alleged

concealments of information about Coleman. The only difference is the source of the disclosure

obligation: Count 6 is based on Brady and Giglio, whereas Count 7 is based on Illinois Rule of

Professional Conduct 3.8 (Ill. R. Prof’l Conduct (2010) R. 3.8 (eff. Jan. 1, 2010)). Either way,

the theory of relevance is the same.

¶ 160 Lastly, Trutenko’s own statements are not cumulative, for largely the same reasons that

Fangman’s statements are not cumulative. They provide evidence of the mental states required to

prove various charged offenses. This unique probative value cannot be replicated by Trutenko’s

testimony at the 2020 Wilson trial, the brief stipulation entered at the start of the bench trial, or

the testimony of any witness who was not a party to the conversations at issue.

¶ 161 D

¶ 162 In sum, we cannot accept the trial court’s characterization of the Fangman-Trutenko

communications as a dispensable mix of hearsay, irrelevant “background” reading, and

cumulative evidence of undisputed, stipulated conduct that has always been evident from

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Trutenko’s testimony and other aspects of the Wilson record. In a case that charges perjury,

obstruction, and official misconduct, it is hardly surprising that the real issues of proof turn on

whether the concealments and false statements were made with the requisite knowledge and

intent. The Fangman-Trutenko communications are the principal, if not the only, evidence that is

directly probative of these offense elements.

¶ 163 True, the trial court did not completely bar Fangman from testifying. But the trial court’s

sua sponte evidentiary rulings, layered atop the erroneous finding of privilege, limit the State’s

potential use of this evidence to a degree that truly hobbles its case. And those rulings have no

reasonable justification in the elements of the State’s burden of proof or in any rule of evidence

that has been cited to us. Those communications, generally speaking, are plainly admissible on

the various grounds we have explained.

¶ 164 That said, we have tried not to specify precisely which communications are relevant and

admissible for each stated purpose. We have been placed in the unusual position of reviewing

evidentiary rulings not after the trial but during it; the unique posture of the case made that

unavoidable. We had no choice but to dive into some particulars on the hearsay question, though

we emphasize again that individualized hearsay objections may be well-taken on remand,

consistent with what we have said here.

¶ 165 On the question of cumulativeness, we do not mean to imply that the court must admit all

evidence of the Trutenko-Fangman communications proffered by the State. While they are not

cumulative of other evidence, they may, at some point, become cumulative in and of themselves.

We appreciate that the trial court has tried to run a tight evidentiary ship in a complex case. But

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we also take the State’s point, for example, that there is evidence of Trutenko’s mens rea to be

gleaned from the sheer fact that Fangman, on his account, repeatedly told him what was at issue

in the 2020 Wilson trial. The State is entitled to reasonable leeway to make valid points such as

this.

¶ 166 There are delicate balances to be struck here, and we think the trial court, in conjunction

with the parties, is in the best position to strike them. However those details are worked out, in

the small, they must faithfully implement the theories of relevance and otherwise abide by the

principles of evidence set forth in this opinion.

¶ 167 IV

¶ 168 At oral argument, as he did in unsuccessfully seeking dismissal of this appeal,

codefendant Horvat argued that we lack jurisdiction to hear this Rule 604(a)(1) appeal insofar as

it pertains to him as codefendant. His counsel argued that the trial court’s order “had nothing to

do with the case against Andrew Horvat.” Counsel noted that Horvat was not present or even

involved in this matter until after the Trutenko-Fangman conversations at issue took place. Nor

did Horvat even participate in the evidentiary hearing held by the trial court. We find no defect in

the court’s jurisdiction as far as Horvat is concerned.

¶ 169 As discussed, Illinois Supreme Court Rule 604(a)(1) (eff. Oct. 19, 2023) provides in

relevant part that “[i]n criminal cases the State may appeal only from an order or judgment the

substantive effect of which results in *** suppressing evidence ***.” A Rule 604(a)(1) appeal on

this ground requires two things: an order that, in substance, suppresses evidence, and a

certification from the State that the order substantially impairs its prosecution of the case. Sneed,

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2023 IL 127968, ¶ 37; People v. Young, 82 Ill. 2d 234, 247 (1980).

¶ 170 As to the first requirement, we have already explained that the substantive effect of the

trial court’s order here—whether based on privilege or one of the evidentiary grounds—was to

suppress evidence; it wholly barred from the factfinder the substance of conversations between

Fangman and Trutenko in September 2020. See Sneed, 2023 IL 127968, ¶ 56; Holmes, 235 Ill.

2d at 70; Drum, 194 Ill. 2d at 485.

¶ 171 Horvat does not dispute that finding; he concedes that the court’s order “suppressed

evidence” for the purposes of Rule 604(a)(1). But he says it did not suppress evidence as to him.

Those conversations, he claims, are relevant to the case against Trutenko but not to him.

¶ 172 We reject that argument for two reasons. First and foremost, the State certified that the

order at issue substantially impaired its prosecution of Horvat. Our supreme court has been clear

that “[i]n examining a certificate of substantial impairment, this court ‘rel[ies] solely upon the

good-faith evaluation by the prosecutor of the impact of the [appealable] order on his case,’ and

it is not the role of reviewing courts to second-guess that evaluation.” Sneed, 2023 IL 127968, ¶

38 (quoting Young, 82 Ill. 2d at 247). That is all we need say.

¶ 173 But second, even were we inclined to second-guess the State, we would agree with its

assessment. First, the suppression order entered in this case applied to Horvat’s trial as much as

Trutenko’s. The order itself, incorporating the court’s oral findings and rulings, made no

distinction between defendants. Nor would it have made any sense to do so. If the content of the

conversations between Trutenko and Fangman were protected by the attorney-client privilege, as

the trial court believed, the substance of those conversations could not be disclosed in either trial.

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¶ 174 Nor do we agree that the Trutenko-Fangman conversations have “nothing to do with the

case against” Horvat. Horvat is accused of covering up Trutenko’s alleged wrongdoing. If the

State is unable to admit the substance of the Trutenko-Fangman conversations, it will be

significantly thwarted in its ability to prove that underlying wrongdoing. Surely the outcome of

the case against Horvat is measurably impacted, if indirectly, by the outcome of this appeal.

¶ 175 Indeed, Horvat’s counsel seemed to recognize the significance of Fangman’s testimony

when he told the trial court during a pretrial hearing that “the way I look at this case[,] there are

two witnesses, Paul Fangman and Larry Rosen, that is the case against my client and I think

those are the only two relevant witnesses.”

¶ 176 So there is no jurisdictional defect with this appeal insofar as Horvat is concerned. He is

being tried jointly with Trutenko. He does not object to that joinder. Indeed, in pretrial

proceedings below, his counsel told the court that “[a]t this point, Judge, I don’t believe that on

behalf of Mr. Horvat we have any basis to seek a separate trial.” And the evidence at issue in this

appeal is relevant to the prosecution against him.

¶ 177 We thus find no flaw, jurisdictionally or otherwise, in Horvat’s participation in this

appeal as a codefendant.

¶ 178 CONCLUSION

¶ 179 The circuit court’s November 8, 2023, order is reversed. The cause is remanded for

further proceedings consistent with this opinion.

¶ 180 Reversed and remanded.

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People v. Trutenko, 2024 IL App (1st) 232333

Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 22-CR- 1350201, 22-CR-1356801; the Hon. Daniel B. Shanes, Judge, presiding.

Attorneys David H. Hoffman, Robert N. Hochman, Marisa E. Levitt, and for Stephen Beemsterboer, of Sidley Austin LLP, Meredith R. Aska Appellant: McBride, of Goldman Ismail Tomaselli Brennan & Baum LLP, and Lawrence Oliver II, all of Chicago, for appellant.

Attorneys James P. McKay Jr., of Tomasik Kotin Kasserman, of Chicago, for Terry A. Ekl and Tracy Stanker, of Ekl, Williams & Provenzale Appellee: LLC, of Lisle, and Brian T. Sexton, of Law Offices of Brian T. Sexton & Associates, of Naperville, for appellees.

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